Right to Know/The federal victims bill of rights: Back to the future?

OTTAWA — The innocent victims of crime have been overlooked. their pleas for justice have gone unheeded, and their wounds — personal. emotional and financial — have gone unattended.

These could easily be the words of Justice Minister Peter McKay — they are actually the words of U.S. President Ronald Reagan’s Task Force on Victims of Crime, back in 1982.

Much has been said in recent months about victims of crime, their lack of standing in the justice system, “antiquated notions” of a justice system without victims engaged in prosecutions, and finally the “Canadian Victims Bill of Rights” introduced recently by the minister of justice.

How did we get to this discussion about victims’ rights?

Let us consider the justice system as it stands in Canada today. It is defined, at its heart, by the individual accused of crime by the society in which he or she lives. The state legislators pass laws, the executive enforces those laws. Individuals who violate those laws are charged by state policing agencies and prosecuted by state crown attorneys.

Victims of the crime play almost no role in the prosecution of crime, except in so far as they are witnesses and that their views are heard at the sentencing stage of the proceedings.

Why did we end up with this system?

The Lex Talionis (the law of retaliation).

Retired Supreme Court Justice Morris Fish spoke eloquently about this ancient concept upon his being awarded the G. Arthur Martin Award for his contribution to criminal law a few years back.

He spoke of the ancient Jewish scholars and of St. Augustine, and how the lex talionis was a marker for the introduction of proportionality into the law. Particularly the law of sentencing for those found guilty of committing crimes.

More than just that, the lex talionis was the marker for civilized societies that tried to institutionalize retribution and stop the feuds and vendettas that could very quickly undermine the fabric of a society.

It was one of the earliest known attempts to control raw and unrestricted vengeance, placing the meting out of retaliation in the hands of a body created by the community — a very early version of the modern state, implementing justice on behalf of the community.

The Code of Hammurabi in ancient Babylon, the Laws of the Twelve Tables in Rome and the Old Testament all include laws that reflect the concept of the lex talionis. At the same time, these laws codified concepts of restitution to compensate those wronged by law breakers.

The concept developed in the western tradition to reflect that breaking laws was a threat to “the king’s peace”. As such, it was the monarch — and later the people embodied as the state — that was the victim of the crime. Ideas of reparation, punishment and rehabilitation were slowly embroidered into the law over time.

At the same time, the individual who had been the victim of crime was pushed out of the criminal justice system, as our system developed parallel criminal and civil proceedings, and restitution could be sought in the civil courts, while the state pursued justice for the people in the criminal court.

The hefty standard required of the state to prove guilt beyond reasonable doubt in the criminal court did not apply to individuals seeking redress in the civil courts as the power imbalance (individual versus state) did not exist in the civil arena.

And so we arrive at our modern justice system where the individual victim of crime has been excluded from the criminal justice process, left to seek redress in civil courts, through specialized bodies like the criminal injuries compensation board, support networks in the community and through private structures like insurance companies.

Whatever the reasoning and regardless of the merit, there is a significant population in today’s society who feel that “victims of crime” need to be included in the criminal justice system.

Of course, the argument is an old one now, having become a part of the U.S. political discourse more than 40 years ago. In fact, much of what has been proposed in the Canadian Victims Bill of Rights and other recent federal legislation was fully articulated by Reagan’s Task Force on Victims of Crime back in 1982.

Many of the reasons put forth for enhancing the role of the victim in the criminal process are compelling, particularly if one accepts that we are beyond vengeance and retaliation.

However, at its core, the movement toward putting victims “at the heart of our judicial system” is about participation and restitution — concepts that hearken toward vengeance and retaliation, and away from proportionality and rehabilitation.

Some see this as a clear step backwards from where the traditions of the lex talionis have brought us. It has been argued that the more appropriate avenue to remedy victims’ feelings of disenfranchisement is to provide proper funding to programs that assist them.

Counselling, financial compensation programs, support centres and emergency housing are what many argue are the needs of society’s victims of crime.

As we move toward a more victim-centric justice system, primal notions of vengeance and retaliation may also re-emerge as forces that we will have to reckon with. We must tread these old roads carefully.

Dominic Lamb is a criminal lawyer at the firm of Edelson Clifford D’Angelo Friedman LLP. He can be reached at <a href="http://dominic@edelsonlaw.ca“>dominic@edelsonlaw.ca. Follow Dominic on twitter@dominiclamb.

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